A Court for the Constitution

A funny thing happened on the way to the end of the supposedly partisan Supreme Court’s term: it ruled for the Biden administration on immigration. Somehow this case is not on the blacklist of people wanting to declare that the Court is now “illegitimate”, but the judges applied the law regardless of policy and decided for the executive power.(See nearby for details.)


This is not a partisan court in search of favored political outcomes. It is a court that follows the principles of originalism, with different shades of emphasis by different judges. The Court’s jurisprudence focuses more than anything else on who under the Constitution decides policy, not what that policy should be.

This is the main reason Democrats and the press are furious with the Court’s rulings. For decades, they’ve relied on a majority of justices to get or bless the policy outcomes they want: on abortion, voting rights, health care, racial preferences, climate and economic regulation. You name it, the Court found ways to deliver it with balancing tests, quarterly analysis, and the discovery of unlisted rights between the lines of the text of the Constitution.

For decades, conservative critics have argued that the Court’s role should be different – upholding the rights that are actually in the Constitution, but otherwise enforcing the separation of powers so that each branch of government stays on its own course as defined. by the founders. With the arrival of three new justices nominated by Donald Trump and headed for confirmation by GOP Senate Leader Mitch McConnell, this Court has arrived.

The result is the opposite of judicial imperialism. In the Dobbs abortion case, the Court tries to extricate itself from the debates on the policy of abortion. As Justice Brett Kavanaugh said, “The Constitution is neutral on the issue of abortion.” Policy will now be set by state lawmakers based on input from voters, subject to low-level legal scrutiny known as the “rational basis” test.

The political outcome may be surprising. The right to life movement must now persuade voters in 50 states, and most voters favor some limits on abortion, but not an outright ban. If Republicans sound like moral rebukes and can’t make their case with compassion for women, they will lose the debate. If Republicans seek a national abortion ban through Congress, the Court could overturn it. The majority of the Court in Dobbs reinvigorated democracy and federalism.

In its administrative law cases, the Court also does not dictate outcomes. He is revitalizing his role as a traffic policeman with the branches. On immigration law, two conservatives joined the liberals in siding with the White House. But on climate, six justices found that the Biden administration overstepped the authority Congress had provided in the legislation.

The cries from the left are that the Court has condemned the world to burn. But progressives can still regulate carbon emissions. The catch is that to meet their climate goals, they will need to pass legislation, not just reinterpret some obscure corner of the Clean Air Act that was not written with carbon emissions in mind.

As Judge Neil Gorsuch observed in WestVirginia v. EPA, legislating can be difficult in the American system. But that’s how the Founders designed it to protect freedom and ensure political accountability. Telling Congress to write clear commands to the bureaucracy reinforces accountability.

The Court also takes a more robust approach to protecting the rights mentioned in the Constitution, particularly the First and Second Amendments. On gun rights, judges gave new substance to the individual right to bear arms recognized by the 2008 law Heller decision. Politicians can still regulate guns, but they need to do so more carefully so individuals can defend themselves outside their homes.

On religious liberty, the Court cleaned up decades of confusing instructions to lower courts on the separation of church and state. The judges gave new vigor to the free exercise of religion by supporting private prayer in a public place and banning discrimination against religious schools. States don’t have to help private schools, but if they do, they can’t withhold that help from religious schools. This is an appropriate policing role for the Court in guaranteeing the freedoms specified in the Constitution.


All of this justifies the decades-long effort known as the conservative legal movement. What started with the school of law and economics grew with the Federalist Society and a generation of federal judges into something much larger and now more important.

Lately, some on the social right have called this movement a failure, but they are as wrong as the critics on the left. This Supreme Court term gave victories to libertarians and cultural conservatives under the principle of originalism. The separation of powers is as crucial to protecting religious freedom as it is to protecting property rights or limiting regulation without congressional orders.

This is a court for the Constitution, which means that the right and the left will have to win their political victories the old fashioned way, in a democratic way.

Wonder Land: The Democrats always seem poised to push politics into a state of civil unrest. Images: Getty Images/The Boston Globe Composite: Mark Kelly

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